R. v. Sparrow
Encyclopedia
R. v. Sparrow, [1990] 1 S.C.R. 1075 was an important decision of the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 concerning the application of Aboriginal
Aboriginal peoples in Canada
Aboriginal peoples in Canada comprise the First Nations, Inuit and Métis. The descriptors "Indian" and "Eskimo" have fallen into disuse in Canada and are commonly considered pejorative....

 rights under section 35(1)
Section Thirty-five of the Constitution Act, 1982
Section thirty-five of the Constitution Act, 1982 provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada. The section, while within the Constitution Act, 1982 and thus the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms...

 of the Constitution Act, 1982
Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...

. The Court held that aboriginal rights, such as fishing
Fishing
Fishing is the activity of trying to catch wild fish. Fish are normally caught in the wild. Techniques for catching fish include hand gathering, spearing, netting, angling and trapping....

, that were in existence in 1982 are protected under the Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...

 and cannot be infringed without justification on account of the government's fiduciary duty to the Aboriginal peoples of Canada.

Background

Ronald Edward Sparrow, a member of the Musqueam Band, was caught fishing with a drift net 45 fathom
Fathom
A fathom is a unit of length in the imperial and the U.S. customary systems, used especially for measuring the depth of water.There are 2 yards in an imperial or U.S. fathom...

s (82 m) in length, 20 fathoms (37 m) longer than permitted by the band's fishing licence under the Fisheries Act. Sparrow admitted to all the facts in the charge but justified it on the ground that he was exercising his aboriginal right to fish under section 35(1) of the Constitution Act, 1982.

At trial, the judge found that section 35 only protected existing treaty rights and that there was no inherent right to fish. An appeal to the County Court was dismissed and a further appeal to the Court of Appeal was dismissed on the grounds that there was insufficient evidence to maintain the defence.

The issue to the Supreme Court was whether the net length restriction violated s. 35(1).

Reasons of the court

The judgment of unanimous Court was given by Chief Justice
Chief Justice of Canada
The Chief Justice of Canada, like the eight puisne Justices of the Supreme Court of Canada, is appointed by the Governor-in-Council . All nine are chosen from either sitting judges or barristers who have at least ten years' standing at the bar of a province or territory...

 Brian Dickson
Brian Dickson
Robert George Brian Dickson, , commonly known as Brian Dickson, was appointed Chief Justice of Canada on April 18, 1984. He retired on June 30, 1990 and died October 17, 1998.-Career:...

 and Justice Gérard La Forest
Gérard La Forest
Gérard Vincent La Forest, CC, QC, FRSC, LL.D was a Puisne Justice of the Supreme Court of Canada from January 16, 1985 to September 30, 1997....

. They held that Sparrow was exercising an "inherent" Aboriginal right, that existed before the provincial legislation and that was guaranteed and protected by section 35 of the Constitution Act, 1982. To arrive at this they interpreted each of the words of section 35(1).

"Existing"

The word "existing" in section 35(1), the Court said, must be "interpreted flexibly so as to permit their evolution over time". As such, "existing" was interpreted as referring to rights that were not "extinguished" prior to the introduction of the 1982 Constitution. They rejected the alternate "frozen" interpretation referring to rights that were being exercised in 1982.

Based on historical records of the Musqueam fishing practices over the centuries and into colonial time, the Court found that the band had a clear right to fish for food.

Extinguishment
Extinguishment
Extinguishment is the destruction of a right or contract. If the subject of the contract is destroyed , then the contract may be made void. Extinguishment occurs in a variety of contracts, such as land contracts , debts, rents, and right of ways...

 of rights can only occur through an act that showed "clear and plain intention" on the government to deny those rights. Here, the Court found that the Crown was not able to prove that the right to fish for food were extinguished prior to 1982. The licencing scheme was merely a means of regulating the fisheries not remove the underlying right, nor did any historical government policy towards fishing rights amount to a clear intention to extinguish.

"Recognized and Affirmed"

The words "recognized and affirmed", the Court held, incorporate the government's fiduciary duty to the Aboriginal people which requires them to exercise restraint when applying their powers in interference with aboriginal rights. This further suggests that aboriginal rights are not absolute and can be encroached upon given sufficient reason.

Aftermath

After the Sparrow case, federal or provincial legislation can only limit aboriginal rights if it has given them appropriate priority, because aboriginal rights have a different nature than other non-aboriginal rights.

The "Sparrow test" has been used since this important decision by many experts as a way of measuring how much Canadian legislation can limit aboriginal rights.

Typical cases of inappropriate priority include distributing hunting
Hunting
Hunting is the practice of pursuing any living thing, usually wildlife, for food, recreation, or trade. In present-day use, the term refers to lawful hunting, as distinguished from poaching, which is the killing, trapping or capture of the hunted species contrary to applicable law...

 licences by lottery.

See also

  • The Canadian Crown and First Nations, Inuit and Métis
    The Canadian Crown and First Nations, Inuit and Métis
    The association between the Canadian Crown and Aboriginal peoples of Canada stretches back to the first interactions between North American indigenous peoples and European colonialists and, over centuries of interface, treaties were established concerning the monarch and aboriginal tribes...


Canadian Aboriginal case law
  • Numbered Treaties
    Numbered Treaties
    The numbered treaties are a series of eleven treaties signed between the aboriginal peoples in Canada and the reigning Monarch of Canada from 1871 to 1921. It was the Government of Canada who created the policy, commissioned the Treaty Commissioners and ratified the agreements...

  • Indian Act
    Indian Act
    The Indian Act , R.S., 1951, c. I-5, is a Canadian statute that concerns registered Indians, their bands, and the system of Indian reserves...

  • Section Thirty-five of the Constitution Act, 1982
    Section Thirty-five of the Constitution Act, 1982
    Section thirty-five of the Constitution Act, 1982 provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada. The section, while within the Constitution Act, 1982 and thus the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms...

  • Indian Health Transfer Policy (Canada)
    Indian Health Transfer Policy (Canada)
    The Indian Health Transfer Policy of Canada, provided a framework for the assumption of control of health services by Aboriginal Canadians and set forth a developmental approach to transfer centred on the concept of self-determination in health. Through this process, the decision to enter into...


External links

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